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Can I Be Arrested for Drugs That Are Not Mine?

Posted on: July 11, 2022

Being arrested for possession of drugs can be an overwhelming experience, particularly if the drugs did not belong to you. Whether drugs were found in your home, in your car, or even in your general vicinity, proving they are not yours can be quite challenging and requires the help of an experienced criminal lawyer. Having a lawyer for cases like this is the best way to defend your rights and possibly get the charges either reduced or dismissed.  

Unfortunately, if the police find drugs in your vehicle or in your home, you most likely will be arrested as the main suspect unless you can prove that someone else has access to where the drugs were found. If drugs are found in a home, the person who owns the house or has control of the property will likely be arrested. If drugs are found in a car, the driver or the owner of the vehicle will likely be arrested for possession unless they were found in the backseat next to a passenger.   

The Right to Remain Silent

If you are arrested for drug possession and the drugs are not yours, know that you do not have to answer any questions and you have the right to remain silent. It is important to remember to exercise this right, particularly because the situation will obviously be stressful, and you may panic. You do not have to give the police any information other than your identity; politely refuse to answer any other questions and ask to speak to a lawyer as soon as possible. Offering the police any information other than your identity may be used against you in court, so you certainly want a lawyer to answer the questions for you, as a skilled attorney would know your rights and can help prove the drugs were not yours. Additionally, do not resist arrest as doing so may make matters worse for you.

What is “Constructive Possession”?

Through the “constructive possession” doctrine, a person could be found to be in possession for drugs without actually having physical control of the drugs. If drugs or an object, such as a gun, is within your vicinity or “domain and control”, you may be arrested for possession. Some examples of “constructive possession” are:

  • A ridesharing app driver is caught with drugs in the back seat of their car. The driver may be charged with “constructive possession” unless the driver can prove that the drugs belonged to a passenger or someone else.
  • The owner of a house can be charged with “constructive possession” if drugs are found in one of the rooms a roommate resides in.

This is in contrast to other “possession” charges, such as:

  • Actual possession: Actual possession means when an object or drugs is physically found on your person.
  • Joint possession: Joint possession can sometimes overlap with “constructive possession” and involves multiple people sharing a substance.

It is difficult to prove the drugs are not yours if you are charged with “actual possession” and they were physically found on you. It is difficult if you are charged with “constructive possession” as well, but it is not uncommon in either case to otherwise prove the drugs are not yours.   

You may have been charged with “constructive possession”, but in many states, the prosecutor has to prove that:

  • You knew, or should have known, that there were drugs in your home, vehicle, or property in which you have domain and control.
  • Beyond a reasonable doubt, you, as the owner, had knowledge and control. Knowledge is probably more difficult to prove than control.
  • The prosecutors would also have to prove that the defendant knew or should have known the drugs were illegal.

Incriminating Evidence

Here are some examples of incriminating evidence that may be used against you if you are facing drug possession charges:

  • The defendant is the owner of the home or property where the illicit drugs were found.
  • The drugs were found in plain and obvious view.
  • The drugs found were found physically on the defendant’s person or among their personal items.
  • The drugs were found in the defendant’s bedroom while the police were conducting a search of the home.
  • The drugs were found within the defendant’s immediate vicinity while searching their vehicle.
  • The defendant showed suspicious behavior or actions while being arrested.

These may be examples of a link between the defendant and the substances found; however, it does not mean the defendant is guilty and possession still has to be proven.

Possible Defenses for Drug Possession

Whether drugs are found on your person or in your general vicinity, it does not automatically make you guilty of possession. There are a few defenses that a skilled lawyer could use that may prove your innocence:

  • Someone else had access to your property: Should you share a house with someone else or a car, there is a chance that you will be able to prove that the drugs are not yours and someone may have put them there. A criminal lawyer might be able to prove that you are not the only person that has access to your home or vehicle, or wherever the drugs were found.
  • Burden of proof: It would have to be proven by the prosecutor beyond a reasonable doubt that the drugs are yours. One way to defend against this is to establish that another person had access to wherever the drugs were found.
  • Illegal search: The Fourth Amendment of the U.S. Constitution protects against being the victim of an illegal search or seizures. This means that the police must have “probable cause” to search your property or yourself and may need a search warrant. However, they may not require a search warranty if you consented to the search, you or the police were in imminent danger and a crime may have been committed, the drugs were out in plain view, or the drugs were discovered while you were being lawfully arrested.

Penalties for First-Time Drug Offense in New Jersey

The penalties you face if you were charged with a first-time drug offense depends on a few factors, such as what type of drugs were found in your possession, how much of it, and if you had intent to distribute the drugs. Penalties increase depending on the type of illegal drug not including marijuana, such as heroin, cocaine, LSD, methamphetamine, and others. Penalties may include prison time up to five years and fines up to $35,000, a suspended driver’s license or your vehicle being seized.

You may face jail time even if the drug offense is your first. Showing remorse and having no prior charges may help you in the eyes of police and the prosecutor, but it is not guaranteed. A drug offense is a serious offense and is seen as such by law enforcement.

There are some options in New Jersey that are available for first-time drug offenders to maybe avoid a trial and the most severe penalties, including:

  • Pre-trial intervention: A pre-trial intervention is generally a rehabilitation program aimed to help addicts, which is only available for first-time drug offenders who do not have any prior crimes.
  • Conditional discharge: Occasionally, it may be possible for a drug offender to plead guilty but otherwise avoid having a drug conviction on their record. This is done by instead serving probation, and perhaps other conditions. When the conditions are met then the case is dismissed.  
  • Drug court: First-time drug offenders may be able to attend a treatment program or a drug court program that meets other conditions other than face the harsh penalties associated with drug offenses. Here, unlike a pre-trial intervention or a conditional discharge, the defendant must plead guilty, and the charge will still show on their permanent record.
  • Veterans’ diversion program: This is a type of rehabilitation or treatment program designed for veterans who are facing drug charges.

The Freehold Criminal Lawyers at Ellis Law, P.C. Defend the Rights of Those Facing Drug Charges

If you have been charged with drug possession, you need to have the best criminal defense attorney at your side. Our skilled Freehold criminal lawyers at Ellis Law, P.C. are here to help. Call us today at 732-308-0200 or fill out our online form for a free consultation. With our offices located in Freehold, New Jersey, we proudly serve all communities of Freehold, Asbury Park, East Brunswick, Toms River, Middletown, Jersey City, Long Branch, Neptune, Hudson County, Union County, Essex County, Monmouth County, Marlboro, and Ocean County, as well as Brooklyn and New York City.